409 F.

2d 66

Francis PIECHOSKI, Appellant,

v.
GRACE LINES, INC.
No. 17282.

United States Court of Appeals Third Circuit.

Argued Feb. 18, 1969.
Decided April 8, 1969.

Joseph P. Briglia, Fine, Staud & Silverman, Philadelphia, Pa., (Aloysius J.

Staud, Philadelphia, Pa., on the brief), for appellant.
Clayton H. Thomas, Jr., Marshall, Dennehey & Warner, Philadelphia, Pa.,
for appellee.
Before VAN DUSEN, ALDISERT and STAHL, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.

This is a longshoreman's appeal from the denial of his alternative motions for
judgment n.o.v. or a new trial following a judgment entered against him and in
favor of the defendant, Grace Lines, Inc., after a jury verdict in a maritime
personal injury action tried on theories of negligence and unseaworthiness. The
plaintiff was injured when struck by a lanyard that was being returned to the
ship by winches after it had been used, without incident, in the removal of two
of three pontoon hatch coverings which protected the hatch where plaintiff was
working. As the lanyard, suspended by wires, was being swung back over the
ship preparatory to removing the third pontoon, it became entangled in lashings
used to secure certain containers near the edge of the vessel's deck and whipped
free of the lashings, striking plaintiff on the head.1 Plaintiff's theory at trial was
that the winches were defective; the container which was lashed on the inshore
side of the deck should have been removed before the pontoons were taken off;
and the lashings should have been removed before the operations bagan.2 Each
of those questions of fact was properly submitted to the jury, whose verdict was

supported by adequate evidence so that there was no error in denying plaintiff's

motion for judgment n.o.v.
2

Plaintiff now claims that the trial court erred in failing to charge that the
stevedoring company's method of operation, uncorrected by defendant,
constituted negligence and unseaworthiness. This argument fails because
plaintiff did not base his claim on that theory either in his pretrial
memorandum3 or during the presentation of the evidence to the jury. Captain
Wheeler, defendant's witness upon whom plaintiff has placed substantial
reliance, stated, in answer to the question whether he considered the mothod of
operation unsafe, 'No. It is perfectly safe and perfectly proper to handle cargo
over a deck cargo of 8 feet high. Many times a shipload of lumber will be 15
feet high * * * and you are transporting cargo over top of the deck load'.4 The
District Court committed no error in failing to give general instructions that the
overall method of operation might be found to be a basis of liability, since the
theory underlying such an instruction would have had no support in the record.
Southern Pacific Company v. Villarruel, 307 F.2d 414 (9th Cir. 1962); see,
also, Atkinson v. Roth, 297 F.2d 570 (3rd Cir. 1961). The failure to follow the
alleged 'usual practice' to double up the hooks and hook them back into the
rings was also not one of the asserted grounds of liability until the requests for
charge were submitted to the trial judge.

On the day before the receipt of evidence was concluded, and the case was
submitted to the jury, the trial judge advised counsel for plaintiff that he would
not read each of his 38 points for charge to the jury, but consideration would
only be given to a reasonable number of specific points (N.T. 287-8, 350-2 and
347).

Although most of the generally stated requests for charge would properly have
been construed by the trial judge to refer to physical conditions existing on the
ship, such as the lashings, height of the containers, length of the ropes and
lanyards, etc.,5 the following paragraphs 33 and 37 of the requests can be
construed as a specific reference to a method of operation which the evidence
might have justified the court's concluding was a possible basis of liability:

'33. Lanyards and gear must ride free over the deck cargo when being brought
aboard the ship from the pier. The lanyards and gear did not clear the deck
cargo thus making the ship unseaworthy.6

'37. When a ship knows or should have known, that the stevedore's method of
discharging its cargo does not conform to the standard of reasonable care, and

thereby created a hazardous condition, the ship is negligent when it does not
forbid the use of the method. Ferrante v. Swedish American Lines (3 Cir., 331
F.2d 571) (1964).'
7

When counsel for plaintiff was pressed to make his requests for charge
specific, he made one specific reference to the request in paragraph 1, which
was denied, so that it is clear that he could have objected to the failure to
charge these requests (33 and 37) before, as well as after, the charge.

We have concluded that the procedure followed by the court was reasonable in
the light of the limited number of issues involved in this case and the number of
requests submitted.7 See Charles A. Wright, Inc. v. F. D. Rich Co., 354 F.2d
710, 712-713 (1st Cir. 1966).

The trial judge also said prior to the closing arguments of counsel (N.T. 352):

10

'When I have charged the jury I will send the jury out and if you have any
objections, I want them specific and to the point, not in generalities. And I am
not going to allow objections to failing to charge every point that either of you
have submitted. If you want objections you will have to put them on the record
specifically and to the point.'

11

Plaintiff failed to take any specific exceptions to the charge. Rule 51 of the
Federal Rules of Civil Procedure, 28 U.S.C., requires that a specific exception
be taken. McPherson v. Hoffman, 275 F.2d 466 (6th Cir. 1960); Brown v.
Moore, 247 F.2d 711, 723, 69 A.L.R.2d 288 (3rd Cir.), cert. den. 355 U.S. 882,
78 S.Ct. 148, 2 L.Ed.2d 112 (1957). In the absence of a specific exception, no
appeal will lie. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645,
144 A.L.R. 719 (1943); Guest House Motor Inn, Inc. v. Duke, 384 F.2d 927
(5th Cir. 1967).

12

Although the trial judge did not grant plaintiff's counsel an opportunity to
review all 38 points for charge, following the instructions to the jury, as noted
above he warned counsel prior to the charge that the points were not going to be
read to the jury, and counsel should be prepared to state any exceptions
specifically upon completion of the charge. Counsel is entitled to an
opportunity to make objections to the charge following its delivery, but the
court is not required to give counsel unlimited time for such objections. We
find no reversible error on this record because the court gave adequate warning
that it would require specific objections to the charge, and counsel for plaintiff
was not willing to make such specific objections without taking the time to go

over each of his 38 requests. It is clear, of course, that the court need not give
any of the requested points for charge where the charge itself has included a
full statement of the applicable law, and the charge covered adequately the
issues raised during the trial. E.g., Lind v. Aetna Casualty and Surety
Company, 374 F.2d 377 (5th Cir. 1967).
13

For the foregoing reasons, denial of the motion for new trial was not error. The
judgment of the District Court will be affirmed.

The testimony of the winch operator was that the midship winch ran faster than
usual, and jarred the rigging. He immediately tried to stop the midship winch
and increase the speed of the inshore winch to prevent any damage to the
rigging. This sudden movement of the gear caused the rope lanyard to become
wrapped momentarily around the lashing on the inshore container. The winches
continued in operation, causing the gear to swing towards the offshore side, as a
result of which a rope lanyard lashed across the hatch and struck plaintiff in the
head

Plaintiff contended that the latter two factors created an unsafe condition
involving negligence and unseaworthiness

Plaintiff's claim is stated as follows in his Pretrial Memorandum (Document 10

in C.A.35977):
'As plaintiff was standing on the deck he was struck in the head by a lanyard
which had fouled around a lashing wire securing deck cargo and suddenly
broke free. The accident occurred because the pontoon bridles, to which the
lanyards were attached were too long, and the winches were defective. The
standard practices of safety engineering were violated as were the Safety and
Health Regulations for Longshoring.'
At the pre-trial conference, this claim was amended to add a claim of 'improper
storage of cargo on top deck' (Document 16 in C.A.35977). As stated in Payne
v. S. S. Nabob, 302 F.2d 803 (3rd Cir.), cert. den. 371 U.S. 870, 83 S.Ct. 136, 9
L.Ed.2d 107 (1962), at page 807:
'It has long been the law that attorneys at the pretrial stage 'owe a duty to the
court and opposing counsel to make a full and fair disclosure of their views as
to what the real issues at the trial will be.' (Citing cases.) It is through such
disclosure at pretrial that trial prejudice can be avoided.'
See, also, Valdesa Compania Naviera v. Frota Nacional de Petroleiros, 348

F.2d 33, 37-38 (3rd Cir. 1965), and cases there cited.
4

The testimony at 44a-45a, relied on by plaintiff, stated that the operation was
not safe it too much power is used by the winch operator so that the hook
comes in too fast, 'but this is totally within the control of the man holding the
winch controls.' Plaintiff did not attempt to show negligence of the winch
operator and the contention that a defect in the winch machinery caused the
hook and lanyards to come in too fast was rejected by the jury

Since those of the first 32 requests concerning liability referred to items of fault
comparable to overhang of cargo, slime on the ship's rail (5), defects in
equipment (10), dermatitis causing liquid leaking from cargo (11), deck cargo
improperly placed (31), presence of lashing wire (32), the trial judge would not
have anticipated that any other generally worded points for charge would have
reference to methods of operation

It is noted that this positively stated request was based on expert testimony
which the jury was entitled to reject so that it was improperly phrased

We note that this language is used in Mathes and Devitt, Federal Jury Practice
and Instructions, 6.02, at p. 70:
'It is wise to limit requests for instructions. A large number of them tends to
confuse rather than enlighten the jury. Very few lawsuits call for more than 4
or 5 instructions on points of law unique to the issues involved. Many lawyers
submit, and some judges will give, repetitive instructions on the same point of
law, although phrased in slightly different language. The lawyer reasons that
repetition of his favored points of law will impress the jury. When counsel on
the other side reasons the same way, the judge who subscribes to such
suggestions is no more than a talking machine repeating the same points ad
nauseam. Such 'instructions by the acre' are universally condemned.'
Prior to the closing arguments of counsel, the trial judge used similar language
as follows:
'Now I don't want to cut you off. You argue anything you want to the jury. That
is the jury's problem, but as usual in these cases-- and frankly, it gets a little
tiresome to me, and all of you admiralty firms follow the same practice; I think
you must run these things off by the dozens-- when you make objections to my
charge, if you do-- I guess probably both of you will-- you mention them
specifically, * * *.'